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BUDGET GROUP, INC.
FORM OF EXECUTIVE AGREEMENT
BETWEEN BUDGET GROUP, INC. AND EACH OF
XXXXXXX XXXXXX, XXXXXXX X. XXXXXXX, XXXXXX X. XXXXXX AND XXXXX X. XXXXX
EXHIBIT 10.27
This Executive Agreement ("Agreement") is dated as of October 1, 1998,
and is entered into by and between ____________ ("Executive") and Budget Group,
Inc. ("Budget" or "Company"). Executive and Budget hereby agree to the following
terms and conditions:
1. Purpose of Agreement. The purpose of this Agreement is to provide
Executive specified benefits in the event of Executive's termination under
certain circumstances. It is believed that the existence of these potential
benefits will benefit Budget by discouraging turnover among executives with
Agreements, as well as causing such executives to be more able to respond to the
possibility of a "Change in Control" (as defined in Section 9) without being
influenced by the potential effect of a Change in Control on their job security.
2. Other Rights and Obligations. The rights and obligations of
Executive with respect to Executive's employment by Budget shall be whatever
rights and obligations are negotiated between Budget and Executive from time to
time. The existence of this Agreement, which deals only with certain rights and
obligations subsequent to a termination, shall not be treated as raising any
inference with respect to what rights and obligations exist prior to a
termination, or, except as specifically addressed in this Agreement, what rights
and obligations may exist after termination. Further, Executive shall not, at
any time after termination, be obligated to seek other employment in mitigation
of the amounts payable or other benefits provided for under any provision of
this Agreement and the obtaining of any such other employment shall in no event
effect any reduction of Budget's obligation to make the payments and to provide
the benefits required to be made and provided under this Agreement, except to
the extent provided for in Paragraph 7(c)(4).
3. Benefits Payable Upon Qualifying Termination and Execution of a
Release Agreement.
(a) Subject to Section 3(b), if a Qualifying Termination (as defined
in Section 4 below) occurs, the benefits described in Sections 6 and 7,
shall become payable to Executive. In that event, and notwithstanding
Section 11, this Agreement shall remain in effect until Executive receives
the various benefits to which Executive has become entitled under the terms
of this Agreement. If Executive's employment terminates and such
termination is not a Qualifying Termination, then this Agreement shall be
of no further force or effect.
(b) Notwithstanding any other provision of this Agreement, unless
Executive executes a Release Agreement (acceptable to Budget and
substantially in the form set forth in Exhibit I) within 21 days after a
Qualifying Termination (and does not
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revoke the Release Agreement within 7 days after signing it), (1) no
benefits under Section 6 or Section 7(d), or (f) of this Agreement shall be
paid or provided under any circumstances, (2) the benefits described in
Section 7(c) and (e) shall only be paid or provided for 30 days after a
Qualifying Termination , and (3) this Agreement shall be of no further
force and effect. Notwithstanding anything in this Agreement to the
contrary, if Executive fails or refuses to comply with the obligations
provided for in Sections 2 and 3 of the Release Agreement, or is in
violation of the representations and warranties provided for in Sections 4,
5 and 6 of the Release Agreement, Budget's obligations as provided for in
this Agreement shall immediately cease and terminate.
(c) Executive terminates Executive's employment for any reason
whatsoever, including termination due to death or disability, provided that
the Termination Date occurs within one year after a Change in Control
occurs, and prior to an involuntary termination by the Company for Cause.
4. Qualifying Termination. If, during the term of this Agreement,
Executive's employment terminates, such termination shall be considered a
Qualifying Termination if any of the following events occurs:
(a) If a Change in Control occurs and Executive voluntarily terminates
employment, for Good Reason, within one year after the event giving rise to
Good Reason or Executive's employment terminates due to death or disability
during such one year period. For purposes of this Agreement, "Disability"
shall be defined in accordance with Budget's long term disability plan and
"Good Reason" shall mean the occurrence of one of the following events
without Executive's prior written consent:
(1) The assignment to Executive of any duties inconsistent in any
material respect with Executive's position, authority, duties and
responsibilities as they existed in their most significant form
immediately prior to a Change in Control or any other action by
Budget which results in a material diminution in such position,
authority, duties and responsibilities as they existed in their
most significant form immediately prior to a Change in Control,
excluding for purposes of this paragraph (1), (x) an assignment
of substantially equivalent position, authority, duties and
responsibilities; or (y) an isolated, insubstantial and
inadvertent assignment or action which is remedied by Budget
promptly after receipt of notice thereof given by Executive;
(2) Any reduction in (i) Executive's base salary as it existed
immediately prior to a Change in Control; (ii) Executive's
ability to participate in or to receive benefits from (without
any incremental cost to Executive) incentive plans, employee
benefit plans, expense reimbursement policies, or other fringe
benefits as they existed immediately prior to a Change in
Control, excluding changes by Budget with respect to any such
benefits which apply to all executives; or
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(iii) incentive payments made pursuant to any incentive program
(which shall be deemed to be reduced if the annual incentive
payments are less than the average annual incentive paid to
Executive during the term of this Agreement); provided that, (x)
an isolated, insubstantial and inadvertent reduction in an
element of Executive's total compensation which is promptly
remedied after notice by Executive shall not be deemed a
violation of this paragraph (2), and (y) a reduction in one
element of Executive's total compensation shall not be deemed a
violation of this paragraph (2) if a counterbalancing increase in
another element of Executive's total compensation simultaneously
occurs;
(b) Executive is involuntarily terminated without "Cause" during the
term of this Agreement. For purposes of this Section, "Cause" shall mean
(1) an act or acts of dishonesty by Executive in connection with
Executive's employment; (2) any conduct with or against another employee,
customer or other person, including conduct involving moral turpitude,
which causes or is likely to cause Budget embarrassment, liability or
damage; or (3) Executive's repeated failure to perform Executive's duties
or to perform in accordance with direction received from a senior ranking
officer of Budget; or
(c) Executive terminates Executive's employment for any reason
whatsoever, including termination due to death or disability, provided that
the Termination Date occurs within one year after a Change in Control
occurs, and prior to an involuntary termination by the Company for Cause.
5. Notice of Termination. Any termination by Executive for Good Reason,
by Budget for Cause, or by Executive without any reason following a Change in
Control (other than termination due to Executive's death or disability) shall be
communicated by Notice of Termination to the other party hereto given in
accordance with Section 16. For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) to the extent applicable, sets
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of Executive's employment under the provision so indicated
and (iii) if the date of termination ("Termination Date") is other than the date
of receipt of such notice, specifies the Termination Date. The Termination Date
shall be the date of receipt of the Notice or such later date specified in the
Notice, which shall not be later than 90 days after the giving of such Notice.
The failure by Executive or Budget to set forth in the Notice of Termination any
fact or circumstance which contributes to a showing of Good Reason or Cause
shall not waive any right of Executive or Budget hereunder or preclude Executive
or Budget from asserting such fact or circumstance in enforcing Executive's or
Budget's rights hereunder.
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6. Severance Payment. Subject to Section 3(b), in the event of a
Qualifying Termination, Budget shall pay Executive an amount equal to 3 times
the sum of (1) Executive's highest annual base salary rate in effect since
October 1, 1998 plus (2) the greater of i) annual average incentive payments and
bonuses (including those that are performance based, discretionary or otherwise,
but excluding those paid under any long-term incentive and stock option plans)
paid to Executive during the three years preceding the Termination Date
(provided that, if this Agreement has not been effect for three years, the
incentive payments and bonuses shall be based on the incentive payments and
bonuses paid to Executive since January 1, 1998); and ii) the Executive's annual
target bonus or incentive opportunity established for the year in which the
Executive's Termination Date occurs. The amounts due hereunder ("Severance
Payment") shall be paid in cash to Executive in a single lump sum (less
applicable payroll deductions) within 30 days of the Termination Date, and shall
be in lieu of any other severance payment that Executive might otherwise be
entitled to from Budget under the terms of any other severance pay arrangement
or employment agreement.
7. Other Benefits. Subject to Section 3(b), in the event of a
Qualifying Termination, Executive shall be entitled to:
(a) Receive Executive's base salary and a pro rata portion of
Executive's target bonus through the Termination Date, less applicable
payroll deductions.
(b) Receive any unused vacation and holiday pay through the
Termination Date, less applicable payroll deductions.
(c) (1) Except as provided by law (including any nondiscrimination
rules) or by the relevant insurance carrier (after reasonable efforts by
the Company to provide coverage), continue Executive's participation (and,
where applicable, participation of Executive's eligible dependents) in the
medical, dental, life and disability insurance benefit programs of Budget
which had been made available to Executive before the Qualifying
Termination. This ability to participate shall continue for a period of 36
months after the Termination Date ("Completion Date"); if Executive dies
prior to the Completion Date, Executive's dependents, where applicable, may
continue participation until the Completion Date. In order to so
participate, Executive (or dependents, where applicable) shall pay to
Budget (with grace periods analogous to COBRA) the employee portion of the
cost of such benefits (such portion to be determined in the same manner as
for any other executive participants). Thereafter, Executive (or
Executive's dependents, where applicable) shall be entitled to elect COBRA
coverage.
(2) If the law or the insurance carrier prevents Executive from
participating in a program described in this clause (c), Budget shall
make monthly cash payments to
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Executive (or Executive's dependents, where applicable) equal to 102%
of the entire monthly premium (excluding the employee portion)
applicable to such program until the Completion Date. Executive (or
Executive's dependents, where applicable) shall be permitted to elect
COBRA coverage for such program (if allowed under the program).
(3) When coverage under each applicable plan expires, Executive (or
Executive's dependents, where applicable) shall retain the right to
purchase individual conversion policies with respect to any or all of
the benefits provided under said benefit plans to the maximum extent
permitted by law or by the group insurance policies providing such
benefits.
(4) Notwithstanding anything contained herein to the contrary, the
benefits provided for in this subparagraph (c), shall cease prior to
the Completion Date in the event Executive has available substantially
similar benefits at a comparable cost from a subsequent employer.
(d) Receive contributions under the Budget Defined Contribution
Retirement Plan and Budget SavingsPlus (401(k)) Plan (the "Retirement
Plans") if required by the terms for the year in which the Qualifying
Termination occurs. In addition, to the extent any contributions to the
Retirement Plans are not made on behalf of Executive, but would have been
made had Executive remained employed until and including the Completion
Date and made the maximum Section 401(k) contributions under the Plan,
Budget shall pay directly to Executive cash in an amount and at the times
consistent with contributions made for other employees of Budget and in
accordance with the guidelines of the Retirement Plans. Other than the
foregoing, Executive is entitled to no other contribution on Executive's
behalf by Budget to any Budget pension or other retirement plan.
(e) Use of two (2) current model year luxury vehicles (the "Vehicles")
through the earlier of the Completion Date or Executive's death; if
Executive dies prior to the Completion Date, Executive's spouse, if any,
may continue to use one such Vehicle through the Completion Date. During
such period, Budget shall (1) provide Executive with collision (with no
deductible if the accident is not the fault of Executive and with a $250
deductible if the accident is the fault of Executive) and comprehensive
automobile coverage during the time Executive has the Vehicles, as well as
primary automobile liability coverage in the amount of $50,000 bodily
injury per person, $100,000 bodily injury per accident and $25,000 property
damage per accident, and (2) pay for reasonable maintenance costs incurred
by Executive with respect to the Vehicles, including but not limited to
periodic oil changes.
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(f) Receive professional outplacement services, which services shall
be provided by a vendor of Budget's choice.
In the event of Executive's death, any cash payments due hereunder shall be made
to the beneficiary or beneficiaries so designated by Executive in a writing
delivered to the Secretary of Budget. If no such beneficiary has been so
designated, or if no designated beneficiary is in existence at the date of
Executive's death, payment shall be made to Executive's surviving spouse, if
any, or to Executive's estate if Executive has no surviving spouse.
8. Gross Up Provision.
(a) If any payment or benefit received or to be received by Executive
in connection with a Change in Control of Budget or the termination of
Executive's employment (whether payable pursuant to the terms of this
Agreement, a stock option plan or any other plan or arrangement with Budget
or with any person whose actions result in a Change in Control of Budget or
with any person affiliated with Budget or such person (together with the
Severance Payment, the "total payments") will be subject to the excise tax
imposed by Section 4999 of the Code, Budget will pay to Executive, within
30 days of any payments giving rise to the excise tax, an additional amount
(the "gross up payment") such that the net amount retained by Executive,
after deduction of any excise tax on the total payments and any federal and
state and local income and employment tax and excise tax on the gross up
payment provided for in this section, will equal the total payments.
(b) For purposes of determining the amount of the gross-up payment,
Executive will be deemed to pay federal income taxes at the highest
marginal rate of federal income taxation in the calendar year that the
payment is to be made, and state and local income taxes at the highest
marginal rate of taxation in the state and locality of Executive's
residence on the date of termination or the date that excise tax is
withheld by Budget, net of the maximum reduction in federal income taxes
that could be obtained by deducting such state and local taxes.
(c) For purposes of determining whether any of the total payments
would not be deductible by Budget and would be subject to the excise tax,
and the amount of such excise tax, (1) total payments will be treated as
"parachute payments" within the meaning of Section 380G(b)(2) of the Code,
and all parachute payments in excess of the base amount within the meaning
of Section 280G(b)(3) will be treated as subject to the excise tax unless,
in the opinion of tax counsel selected by Budget's independent auditors
prior to the Change in Control and acceptable to Executive, such total
payments (in whole or in part) are not parachute payments, or such
parachute payments in excess of the base amount (in whole or in part) are
otherwise not subject to the excise tax, and (2) the value of any non-cash
benefits or any deferred payment will be determined by Budget's
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independent auditors in accordance with Sections 280B(d)(3) and (4) of the
Code.
(d) If the excise tax is subsequently determined to be less than the
amount originally taken into account hereunder, Executive will repay to
Budget, when such reduction in excise tax is finally determined, the
portion of the gross-up payment attributable to such reduction plus
interest on the repayment at the rate provided in Section 1274(b)(2)(B) of
the Code. If the excise tax is determined to exceed the amount originally
taken into account hereunder (including by reason of any payment the
existence or amount of which cannot be determined at the time of the
gross-up payment), Budget will make an additional gross-up payment in
respect of such excess (plus any interest payable with respect to such
excess) when such excess is finally determined.
9. Change in Control. For the purpose of this Agreement, a "Change in
Control" shall mean:
(a) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange of Xxx
0000, as amended (the "Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of
30% or more of either (1) the then outstanding shares of common stock of
Budget (the "Outstanding Budget Common Stock") or (2) the combined voting
power of then outstanding voting securities of Budget entitled to vote
generally in the election of directors (the "Outstanding Budget Voting
Securities"); provided, however, that the following acquisitions shall not
constitute a Change in Control: (1) any acquisition directly from Budget or
a corporation controlled by Budget (the "Budget Group"), except that an
acquisition by virtue of the exercise of a conversion privilege shall not
be considered to be a Change in Control within this paragraph unless the
converted security was itself acquired directly from the Budget Group, (2)
any acquisition by the Budget Group, (3) any acquisition by any employee
benefit plan (or related trust) sponsored or maintained by the Budget Group
or (4) any acquisition by any corporation pursuant to a reorganization,
merger or consolidation, if, following such reorganization, merger or
consolidation, the conditions described in paragraphs (1) and (2) of
subsection (c) of this Section 9 are satisfied; or
(b) Individuals who, as of the date hereof, constitute the Board of
Budget (the "Incumbent Board") cease for any reason to constitute at least
a majority of the Board; provided, however, that any individual who becomes
a director subsequent to the date hereof whose election, or nomination for
election by Budget's shareholders, was approved by a vote of at least a
majority of the directors of the Incumbent Board (including Board members
previously elected pursuant to this proviso) shall be considered as though
such individual were a member of the Incumbent Board; but excluding, for
this purpose, any such individual whose
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initial assumption of office occurs as a result of either an actual or
threatened election contest (as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consent by or on behalf of a Person
other than the Board; or
(c) Approval by the shareholders of Budget of a reorganization, merger
or consolidation (a "transaction"), unless, following such transaction in
each case, (1) more than 80% of, respectively, the then outstanding shares
of common stock of the corporation resulting from such transaction and the
combined voting power of the then outstanding voting securities of such
corporation entitled to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or substantially all of
the individuals and entities who were the beneficial owners, respectively,
of the Outstanding Budget Common Stock and Outstanding Budget Voting
Securities immediately prior to such transaction and (2) no Person
(excluding the Budget Group, any employee benefit plan (or related trust)
of Budget Group and any Person beneficially owning, immediately prior to
such transaction, directly or indirectly, 20% or more of the Outstanding
Budget Common Stock or Outstanding Budget Voting Securities, as the case
may be) beneficially owns, directly or indirectly, 20% or more of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such transaction or the combining voting power
of the then outstanding voting securities of such corporation entitled to
vote generally in the election of directors; or
(d) Approval by the shareholders of Budget of (1) a complete
liquidation or dissolution of Budget or (2) the sale or other disposition
of all or substantially all of the assets of Budget, unless such assets are
sold to a corporation and following such sale or other disposition, the
conditions described in paragraphs (1) and (2) of subsection (c) of this
Section 9 are satisfied.
10. Waiver of Invalidity; No Offset.
(a) Inasmuch as the injury caused to Executive in the event
Executive's employment is terminated is difficult or incapable of accurate
estimation at the date of this Agreement, the amounts provided to be paid
hereunder are intended to be severance compensation and not a penalty, and
therefore constitute a good faith forecast of the harm which might be
expected to be caused to Executive. Accordingly, Budget waives any right to
assert against Executive the invalidity of any payment hereunder by reason
of Executive's failure to seek other employment or otherwise, and to reduce
the amount of any payment hereunder by reason of any compensation earned by
Executive as the result of employment by another employer after the
Termination Date or otherwise.
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(b) Budget's obligation to make the payments provided for in
this Agreement and otherwise to perform its obligations hereunder shall
not be affected by any set-off, counterclaim, recoupment, defense or
other claim, right or action which Budget may have against Executive or
others.
11. Term of Agreement. This Agreement shall be effective from the date
hereof through September 30, 2002 and may not be amended or terminated during
such period except pursuant to an instrument in writing executed by all of the
parties hereto. The Board of Directors of Budget may, in its sole discretion and
for any reason, provide written notice of termination (or amendment), effective
as of the then applicable expiration date, to Executive no later than six (6)
months before the expiration date of this Agreement. If written notice is not so
provided, this Agreement shall be automatically extended for an additional
twelve months past the applicable expiration date. This Agreement shall continue
to be automatically extended for an additional twelve months at the end of such
twelve month period and each subsequent twelve month period unless notice is
given in the manner described in this Section. Notwithstanding the preceding
sentences of this Agreement, this Agreement shall automatically be extended past
an otherwise applicable expiration date if a Change in Control, or an event
giving rise to Good Reason, has occurred within twelve (12) months prior to such
expiration date. The extension referred to in the preceding sentence shall be
for one year after the Change in Control, or an event giving rise to Good
Reason. For purposes hereof, the "expiration date" shall be the last effective
date of this Agreement, after having given effect to all of the extension
provisions of this Section.
12. Successors. The rights and obligations of Budget under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of Budget.
13. Governing Law. Except to the extent that federal law is applicable,
this Agreement is made and entered into in the State of Florida, and the
substantive laws of Florida, without regard to conflict of law provisions, shall
govern its validity and interpretation in the performance by the parties hereto
of their respective duties and obligations hereunder.
14. Entire Agreement. Except as provided in a written benefit plan of
Budget, this Agreement (and the Release Agreement) constitute the entire
agreement between the parties respecting the benefits due Executive (and the
obligations of Executive) in the event of a Qualifying Termination, and there
are no representations, warranties or commitments, other than those set forth
herein, which relate to such benefits. This is an integrated agreement. No
provision of this Agreement may be amended or waived except by written agreement
signed by the parties.
15. Arbitration. Any and all controversies, claims or disputes arising
out of or in any way relating to this Agreement shall be resolved by final and
binding arbitration before a single
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arbitrator licensed to practice law and in accordance with the Commercial
Arbitration Rules of the American Arbitration Association (the "AAA"). The
arbitration shall be commenced by filing a demand for arbitration, along with a
statement of claim setting forth the specifics of the claim sought to be
arbitrated, with the AAA within sixty (60) days after the occurrence of the
facts giving rise to any such controversy, claim or dispute. The arbitrator
shall decide all issues relating to arbitrability. If the arbitrator determines
that (x) Budget has breached this Agreement or (y) Budget was unjustified in
failing to make the payments required under this Agreement to Executive, Budget
shall pay to Executive, Executive's costs and expenses, including attorneys'
fees, associated with any such arbitration proceeding and, as liquidated damages
and not as a penalty, an additional amount equal to 10% of the amount involved
in the arbitration with respect to this Agreement.
16. Notices. Any notice or communications required or permitted to be
given to the parties hereto shall be delivered personally or be sent by United
States registered or certified mail, postage prepaid and return receipt
requested, and addressed or delivered to the last known address of Budget or
Executive, as appropriate, or to such other address as either party may direct
by notice to the other pursuant to this section.
17. Captions. The captions of this Agreement are inserted for
convenience and do not constitute a part hereof.
18. Severability.
(a) The parties agree that Section 3(b) of this Agreement and Sections
2 through 6 of the Release Agreement are a material part of this Agreement.
The parties believe that all provisions of this Agreement (including
Section 3(b)) and the Release Agreement (if executed and not revoked within
7 days after execution) are legal, binding and fully enforceable.
(b) If Section 3(b) of this Agreement or Section 2, 3, 4, 5 or 6 of
the Release Agreement (or any material part thereof) is invalid, then this
Agreement and the Release Agreement shall be null and void.
(c) Subject to subsection (b) above, in case any one or more of the
provisions contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement, but this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained herein and
there shall be deemed substituted such other provision as will most nearly
accomplish the intent of the parties to the extent permitted by the
applicable law.
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19. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
IN WITNESS HEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first written above.
BUDGET GROUP, INC.
By /s/ Xxxxxxx Xxxxxx
----------------------------
EXECUTIVE
/s/ Xxxxxxx X. Xxxxxxx
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/s/ Xxxxxx X. Xxxxxx
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/s/ Xxxxx X. Xxxxx
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BUDGET GROUP, INC.
/s/ Xxxxxx X. Xxxxxx
------------------------------
EXECUTIVE
/s/ Xxxxxxx Xxxxxx
------------------------------
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EXHIBIT I
RELEASE AGREEMENT
THIS RELEASE AGREEMENT (hereinafter "Agreement") is made and entered into by
and between __________________ ("Executive") and Budget Group, Inc. ("Budget"),
and shall be effective as of the date of its execution.
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. That Budget shall, in full discharge of any and all of its
obligations to Executive, pay to Executive the benefits set forth
in the executive agreement between Budget and Executive ("Executive
Agreement").
2. That in consideration for entering into this Agreement, and for the
monies and benefits described in Section 1 above, Executive:
(a) Except as specifically provided in Sections 7(b) and 7(d) of
the Executive Agreement, waives any right to vacation and/or
holiday pay and, in addition, waives any right to incentive
compensation, including without limitation incentive
compensation under the Annual and the Long Term Incentive
Plans.
(b) Agrees to cooperate fully with Budget to assure a smooth
transition of responsibilities and projects and to otherwise
provide Budget with his full and complete cooperation and
assistance for one year after the Termination Date. Such
cooperation and assistance shall be provided by Executive at
his reasonable convenience and shall not require more than
three (3) consecutive days, or more than ten (10) cumulative
days, without payment by Budget of some form of reasonable
compensation to Executive and/or Executive's future employer
for such excess time; provided, however, that such cooperation
and assistance may be obtained by subpoena served upon
Executive if such a subpoena is required or deemed necessary
by Budget as a result of the actions of any future employer of
Executive. Executive shall cooperate and assist Budget by
providing and communicating to, or for the benefit of, the
senior management of Budget or their designated
representatives, any and all knowledge or information acquired
by Executive during, or as a result of, his employment with
Budget. Such cooperation and assistance shall include, without
limitation, the provision of any such information
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or knowledge to Budget's accountants or attorneys in preparation of
or during the course of any audit process or legal procedure in
which Budget may be, or may become, involved. Any travel, lodging
and out-of-pocket expenses incurred by Executive in fulfilling this
obligation shall be reimbursed to Executive by Budget upon
Executive's submission to Budget of an expense report and receipts,
as appropriate.
(c) Agrees that, during the period from the date of this Agreement
through the Completion Date, he will not, without the prior written
consent of Budget, make or cause to be made any oral or written
statements to any person, firm, corporation, or governmental or
other entity which reflect negatively on Budget or on its
directors, officers, employees, affiliates and related companies,
or which could reasonably be understood to be detrimental to the
business interests of Budget or to its directors, officers
employees, affiliates and related companies.
(d) Agrees to make the Vehicles available for periodic inspection
and/or replacement as Budget may request from time to time and to
return such Vehicles or any replacement Vehicles to Budget on or
before the Completion Date; provided, however, that if Executive
relocates to another city, Budget will reasonably cooperate with
Executive in allowing the inspection, replacement, and/or return of
the Vehicles to take place at the nearest Budget owned and operated
rental location.
(e) Agrees that all other perquisites that had been available to him
as a member of Budget senior management, including but not limited
to social and professional memberships and gasoline and parking
reimbursement, shall terminate as of the Termination Date.
Notwithstanding the foregoing, Executive may continue to use, at
his sole cost and expense, the mobile phones currently in the
Vehicles.
(f) Agrees to refrain, at any time and in any manner, from disclosing
any trade secret of Budget or other confidential and proprietary
business information and material respecting Budget's business of
which Executive has knowledge, where such trade secret or other
confidential and proprietary business information and material was
gained from the files or business operations of Budget or from
Executive otherwise giving
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assistance to another, where such disclosure or assistance could
be prejudicial to Budget or its business, or is in any way related
to any controversy and/or litigation in which Budget is or may
become involved. Notwithstanding the foregoing, Executive may
comply with a court order or subpoena compelling such disclosure
or assistance.
(g) Agrees to deliver to Budget, at the time of the execution of
this Agreement, all documents and materials that relate to Budget,
in Executive's possession, custody, or control; provided, however,
that Executive may keep all documents concerning Budget's
insurance plans, all documents concerning his receipt of wages and
benefits while employed at Budget, and any documents Budget agrees
at its discretion he may keep.
(h) Agrees that the terms and conditions of this Agreement are,
collectively and individually, totally confidential and shall
forever be kept totally confidential and shall not in any manner
or for any reason be disclosed by Executive without the express
prior written consent of Budget, except (x) to members of his
family, his attorneys, and his accountants on a "need to know"
basis, (y) to the Internal Revenue Service, and (z) to anyone
pursuant to a court order or subpoena compelling such disclosure.
This Agreement may be introduced in any proceeding to enforce the
Agreement. Such introduction shall be pursuant to an appropriate
order of confidentiality consistent with the terms of this Section
2(h). If disclosure of this Agreement is compelled pursuant to
service of a subpoena on Executive, then Executive shall
immediately provide written notice to Budget and shall not make
any such disclosure for ten (10) business days in order to give
Budget an opportunity to seek an appropriate protective order,
unless disclosure is required sooner than ten (10) business days
by court order, rule, or regulation, in which case disclosure will
not be made by Executive before the time required by such court
order, rule, or regulation.
3. In further consideration of the payments and benefits provided in this
Agreement, and for other valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Executive hereby knowingly, voluntarily, and
willingly releases, discharges, and covenants not to xxx Budget and its
affiliated and related companies, past and present, as well as each
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of their directors, officers, employees, shareholders,
representatives, attorneys, agents, insurers, assigns, and
successors, past and present (collectively hereinafter
referred to as the "RELEASEES"), from and with respect to any
and all accounts, actions, contracts, agreements, obligations,
causes of action and claims whatsoever, whether known or
unknown, suspected or unsuspected, in law or in equity, which
Executive, and his heirs, executors, administrators,
successors, assigns, dependents, descendants, and attorneys
ever had, now have, or hereafter can, shall, or may have
against the RELEASEES, for, upon, or by reason of any matter,
cause, or thing whatsoever from the beginning of the world to
the date of this Agreement, including without limitation any
and all claims (a) arising out of or in any way related to
Executive's employment with Budget or his separation from
Budget; (b) arising out of or in any way related to any claims
for race, national origin, age, sex, religious, disability, or
other form of employment discrimination, including without
limitation any claims under Title VII of the Civil Rights Act
of 1964, as amended, the Age Discrimination in Employment Act,
as amended, the Americans with Disabilities Act of 1990, the
Employee Retirement Income Security Act of 1974, as amended,
the Family and Medical Leave Act of 1993, the National Labor
Relations Act, as amended, and the Illinois Human Rights Act,
or any other federal, state or local law, statute, ordinance,
or administrative regulation; or (c) for severance pay, bonus,
commission, sick leave, holiday pay, vacation pay, life
insurance, disability, health or medical insurance, or any
other fringe benefits; provided however, that nothing in this
Section will affect any rights provided for in this Agreement.
4. Executive represents and warrants that he has not filed or
caused to be filed any complaints, charges or lawsuits with
any court or government agency relating to his employment with
Budget or his separation from Budget or to any claims being
released by him in this Agreement, and that he will not file
or authorize or cause to be filed on his behalf any such
complaints, charges, or lawsuits at any time hereafter
relating to his employment with Budget or his separation from
Budget or to any claims being released by him in this
Agreement.
5. Executive represents and warrants that he has not assigned or
transferred to any person not a party to this Agreement any
claim being released by this Agreement, or any part or portion
of such claim, and that he shall defend, indemnify, and hold
harmless Budget from and against any claim (including the
payment of attorneys' fees and costs actually incurred
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whether or not litigation is commenced) based on or in connection
with or arising out of any such assignment or transfer.
6. Executive represents and warrants that during his employment with
Budget, he has not engaged in any conduct which may be reasonably
construed as "Cause" pursuant to the provisions of paragraph 4(b)
of the Executive Agreement.
7. Notwithstanding anything in this Agreement to the contrary, if
Executive fails or refuses to comply with his obligations as
provided for in Sections 2 and 3 of this Agreement, or violates
any of his representations and warranties as provided for in
Sections 4, 5, and 6 of this Agreement, Budget's obligations as
provided for in this Agreement and the Executive Agreement
shall immediately cease and terminate.
8. This Agreement shall be interpreted, construed, and enforced under
the substantive laws of the State of Florida, without regard to
conflict of law provisions.
9. Executive and Budget expressly agree that, except to the extent
this Agreement imposes obligations upon the parties, this
Agreement shall never, at any time, for any purpose whatsoever, be
considered as an admission of liability or responsibility of the
parties.
10. Any and all controversies, claims or disputes arising out of or in
any way relating to this Agreement shall be resolved by final and
binding arbitration before a single arbitrator licensed to
practice law and in accordance with the Commercial Arbitration
Rules of the American Arbitration Association (the "AAA"). The
arbitration shall be commenced by filing a demand for arbitration
with the AAA within sixty (60) days after the occurrence of the
facts giving rise to any such controversy, claim or dispute. The
arbitrator shall decide all issues relating to arbitrability. If
the arbitrator determines that Budget has breached this Agreement
Budget shall pay to Executive, his costs and expenses, including
attorney's fees, associated with any such arbitration proceedings,
and, as liquidated damages and not as a penalty, an additional
amount equal to 10% of the amount involved in the arbitration with
respect to this Agreement.
11. (a) The parties agree that Section 3(b) of the Executive
Agreement and Sections 2 through 6 of the Release Agreement are a
material part of this Agreement. The parties believe that all
provisions of the Executive Agreement (including Section 3(b)) and
the Release Agreement are legal, binding and fully enforceable.
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(b) If Section 3(b) of the Executive Agreement or Section 2, 3,
4, 5 or 6 of the Release Agreement (or any material part
thereof) is invalid, then this Release Agreement and the
Executive Agreement shall be null and void.
(c) Subject to subsection (b) above, in case any one or more of
the provisions contained in this Agreement shall for any
reason be held to be invalid, illegal or enforceable in other
respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, but
this Agreement shall be construed as if such invalid,
illegal or unenforceable provision had never been contained
herein and there shall be deemed substituted for such other
provision as will most nearly accomplish the intent of the
parties to the extent permitted by the applicable law.
12. Except as provided in a written benefit plan of Budget, this
Agreement (and the Executive Agrement) constitute the entire
agreement between the parties respecting the benefits due
Executive, and obligations of Executive, in the event of a
Qualifying Termination, and there are not representations,
warranties or commitments, other than those set forth herein,
which relate to such benefits. This is an integrated agreement.
No provision of this Agreement may be amended or waived except by
written agreement signed by the parties.
13. This Agreement may be executed in counterparts, and each
counterpart, when executed, shall have the effect of a signed
original. Photograhic copies of such signed counterparts may be
used in lieu of the original for any purpose.
14. EXECUTIVE EXPRESSLY AGREES THAT HE HAS CAREFULLY READ THIS
AGREEMENT, HAS BEEN PROVIDED WITH THE OPPORTUNITY TO CONSULT WITH
AN ATTORNEY BEFORE ENTERING INTO THIS AGREEMENT, AND FULLY
UNDERSTANDS THE FINAL AND BINDING EFFECT OF THE TERMS AND
PROVISIONS CONTAINED IN THIS AGREEMENT. FURTHER, EXECUTIVE
REPRESENTS AND AGREES THAT THE ONLY PROMISES MADE TO HIM ARE THOSE
STATED ABOVE AND THAT EXECUTIVE IS SIGNING THIS AGREEMENT
VOLUNTARILY AND WITHOUT PRESSURE OR COERCION BY BUDGET OR ITS
OFFICERS, AGENTS, EXECUTIVES, DIRECTORS, OR ANYONE ELSE ACTING
ON THEIR BEHALF.
15. SPECIAL NOTICE TO EXECUTIVE (AS REQUIRED BY LAW FOR EXECUTIVES
AGED 40 AND OLDER):
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(a) You should consult with an attorney prior to signing this
Agreement and regarding your release of claims as provided in
this Agreement.
(b) You were given a copy of this Agreement and you represent that
you have been given a period of twenty-one (21) days (or
forty-five (45) days if part of a group termination) after
receipt of the initial copy of this Agreement to consider the
terms of this Agreement before you sign it, and that you elect
to execute this Agreement on this date.
(c) You are entitled, within 7 days after you sign this Agreement, to
revoke the release and discharge provided for in Section 3 above
as it relates to any claim you may have under the Age
Discrimination in Employment Act, as amended and the Agreement
will not become effective or enforceable until the revocation
period has expired; provided, however, that such revocation will
cancel this Agreement and the Executive Agreement in their
entirety.
16. Capitalized terms not defined herein shall be defined in accordance
with the Executive Agreement.
IN WITNESS WHEREOF, the parties, intending to be legally bound, have
executed this Agreement as of the date set forth herein.
BUDGET GROUP, INC. EXECUTIVE
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Date: Date:
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